After a power struggle between South Sudanese President Salva Kiir and his former vice president, Riek Machar, plunged the world’s newest state into crisis in mid-December, the international community dutifully mobilized to bring the warring parties to the negotiating table. Right now, as South Sudan slides toward open civil war, representatives from both sides are engaged in direct, face-to-face talks in Addis Ababa. Unfortunately, however, the international community is misleading Africa yet again. The track record for face-to-face negotiation in post-colonial Africa — and in Sudan itself — is abysmal. Instead of trudging down the same, well-worn path toward failure, South Sudan should look to traditional modes of conflict resolution to end the current standoff.

More than 40 wars have been fought on the continent since 1970. Year after year, one African country after another has imploded with deafening staccato, scattering refugees in all directions: Sudan erupted in 1972, Angola and Mozambique in 1975, and Ethiopia in 1985. Then came Liberia (1992), Somalia (1993), Rwanda (1994), Zaire (1996), Sierra Leone (1997), Congo (1998), Ethiopia/Eritrea (1998), Guinea (1999, 2010), Ivory Coast (2001, 2005, 2010), Libya (2011), Mali (2012), and now the Central African Republic and South Sudan.

Almost without exception, attempts to reach peace accords have ended in failure. The most common modality has been the direct, face-to-face negotiation between the warring factions — a Western approach often pushed by a well-intentioned international community. But this has seldom worked in Africa.

Face-to-face negotiations only succeed when factional leaders want peace or are forced to pay a price for the mayhem they wreak — conditions that have rarely been met in Africa. More often than not, conflict becomes profitable for warlords because it provides them with opportunities to rape, pillage, and plunder natural resources. For rebel soldiers, their weapons are often their livelihoods. Likewise, government soldiers sometimes live by looting, since they are routinely unpaid by their cash-strapped governments. Countless examples can be drawn from the wars in Liberia, Sierra Leone, Somalia, and the Democratic Republic of Congo. Conflict also gives national governments a ready-made excuse — “national security” — to suspend development projects, halt provision of social services, and keep their defense budgets secret, thereby shielding corrupt dealings from scrutiny.

Face-to-face negotiations often reinforce these wartime patterns by failing to dole out punishment for combatants. Often, militant leaders are actually rewarded at the negotiating table, gaining the respectability and influence that comes with international recognition. Back in 1993, the late Somali warlord Mohammed Farah Aideed was transported in U.S. military aircraft to Addis Ababa to take part in peace negotiations. The spectacle raised Aideed’s stature and bolstered his confidence in becoming Somalia’s next president— only months before his forces killed 18 U.S. Rangers in Mogadishu. In a similarly outrageous arrangement brokered by the international community, the head of the notorious Revolutionary United Front (RUF) — which chopped off the limbs of everyone, including women and children, who stood in their way — was made Sierra Leone’s minister of lands and mines in 1999.

A related problem with direct, face-to-face negotiations is that they often lead to the establishment of what are invariably termed “governments of national unity” — clumsy attempts to forge power-sharing agreements between warring factions that have only just agreed to put their weapons down. This, of course, defies common sense.

How are mortal enemies expected to cast all suspicion aside and blithely work together for the benefit of all?

How are mortal enemies expected to cast all suspicion aside and blithely work together for the benefit of all? Most of the time they don’t, and conflict breaks out again (See: Angola in 1992, Congo in 1999, Sierra Leone in 2000, and Ivory Coast in January 2003). But it’s not just that unity governments are destined to fail; it’s that when they succeed, they amount to blueprints for the joint-plunder of the state. Ministerial and governmental positions are divvied up between government and rebel leaders — invariably igniting bitter squabbles in the process — and then the rent-seeking begins.Making matters worse, African leaders seldom honor agreements they append their names to, much less implement them in good faith. During the Ivoirian crisis in 2003, for example, a peace accord was signed in Ghana establishing a power-sharing deal between the government of President Laurent Gbagbo, which controlled the southern half of the country, and rebel groups that controlled the north and much of the west. But conflict soon erupted over the distribution of cabinet posts, and Gbagbo flouted the accord by refusing to spell out the powers he would cede to the opposition and only funding the government ministries he controlled. Predictably, fighting broke out again, threatening to reignite the civil war.

A similar script played out in Liberia during the civil war that saw tens of thousands slaughtered, raped, and maimed between 1999 and 2003. At peace talks in Ghana in June 2003, President Charles Taylor, who had been indicted for war crimes by a U.N-Sierra Leone court, pledged to step down under a cease-fire his government signed with two of the rebel groups battling his regime. The agreement called for Taylor’s resignation and the formation of a transitional government, composed of the government, rebels, and political parties, among others. But within hours of signing the accord, Taylor’s government was backtracking on the question of his resignation. In the end, it was only after an intense bombardment of Monrovia — coupled with heightened international pressure and an offer of political asylum in Nigeria — that Taylor finally resigned in August 2003.

More than 30 such peace accords have been brokered in Africa since the 1970s — and the track record has been appalling. Only Mozambique’s 1991 peace accord has endured, and even now it appears shaky as clashes between the government and the rebel group Renamo have flared recently over implementation.

Elsewhere, peace accords were shredded like confetti even before the ink on them was dry.

Elsewhere, peace accords were shredded like confetti even before the ink on them was dry. The most spectacular failures occurred in Angola (1991 and 1994), Burundi (1993), Rwanda (1993), Sierra Leone (1999), Democratic Republic of Congo (1999), and Ivory Coast (2003). All collapsed because face-to-face talks were marred by brinkmanship and broken promises.Even where peace accords are successfully concluded and unity governments are established, they are almost always short-lived. Angola’s unity government failed after six months in 1992. Congo’s 2003 unity government created four vice presidents but did not bring peace to the eastern part of the country. Burundi’s civil war flared up again in August 2003, despite the establishment of a unity government brokered by former South African President Nelson Mandela and Ivory Coast’s 2003 unity government has proceeded in fits and starts. Kenya’s unity government has floundered since 2008; Zimbabwe’s since 2009.

Given this record, it is difficult to be optimistic about South Sudan’s current peace talks in Addis Ababa. Add to this the fact that the South’s 2005 power-sharing agreement with Sudanese President Omar Bashir failed miserably and that Kiir and Machar have already tried a unity government, and the third time looks even less likely to be the charm. Another unity government simply doesn’t make sense. Rebel leader Machar almost certainly won’t agree to a deal in which Kiir remains president, and Kiir is unlikely to resign. Nor is there a clear military solution — a bitter lesson from the post-colonial era is that no African government has successfully put down a rebel insurgency.

But perhaps Africa’s own indigenous conflict resolution mechanism can offer a way out of the conundrum. The key ingredient in the African method — missing in the Western approach — is engagement with civil society. “When two elephants fight, the grass gets trampled upon and hurt,” goes the African proverb. African conflict resolution, then, requires four parties: the two elephants, an arbiter, and the “grass” (composed of all those affected by the conflict.) Just as it takes a village to raise a child, so too does it take one to resolve a conflict.

In most traditional African societies, when two people cannot resolve their differences by themselves, their case is taken to a village chief’s court for adjudication. The court is open and anyone affected by the dispute can participate. Both parties are invited to make their case. Next, anybody else who has something to say may do so. After all the arguments have been heard, the chief renders a decision. The guilty party may be fined, say, three goats. By default, his or her family is held liable. The injured party receives one goat, the chief is given a goat for his services, and the final goat is slaughtered for a village feast for all to enjoy.

The latter social event is derived from the African belief that frayed social relations need to be healed — the “grass” restored. More importantly, the interests of the community supersede those of the disputants. If they adopt intransigent positions, they can be sidelined by the will of the community and fined for disturbing social peace. In extreme cases, they can be expelled from the village. In other words, there is a price to be paid for intransigence and for wreaking social mayhem — a price exacted by the victims. The current system of internationally-mediated peace talks, by contrast, imposes no such punishment on the combatants.

Already, there is limited evidence that traditional dispute-resolution mechanisms can work on a much larger scale. Indeed, following the collapse of the former Soviet Union in 1989, African traditional methods were revived to sweep dictators out of power and transition to a democratic order. In 1989, after unpaid civil servants went on strike and demanded the resignation of Benin’s military dictator, Mathieu Kerekou, a sovereign national conference was called representing various political, religious, trade union, and other groups encompassing the broad spectrum of Beninois society. The conference, chaired by Father Isidore de Souza, held sovereign power and its decisions were binding on all, including the government. It stripped Kerekou of power and scheduled multiparty elections that ended 17 years of autocratic Marxist rule. Similar inclusive national conferences in Congo and Niger (both in 1991) brought dictatorships to an end and set the stage for free and fair elections.

In South Africa, the vehicle used to make the difficult but peaceful transition to a multiracial democratic society was the Convention for a Democratic South Africa (CODESA). It began deliberations in July 1991, with 228 delegates drawn from about 25 political parties and various anti-apartheid groups. The government of F.W. de Klerk made no effort to control the composition of CODESA. Political parties were not excluded, not even ultra right-wing political groups, although they chose to boycott its deliberations. CODESA strove to reach a “working consensus” on an interim constitution and set a date for the 1994 elections. It established the composition of an interim or transitional government that would rule until the elections were held. Most importantly, CODESA’s decisions were binding. De Klerk could not abrogate any decision made by the convention — just as the African chief could not disregard any decision arrived at the village meeting.

Instead of facilitating direct negotiations in Addis Ababa, the African Union should serve as an arbiter between South Sudanese civil society organizations, and political and religious groups. An interim government should be set up — headed by neither Kiir nor Machar — and a date set for elections. If the two leaders remain recalcitrant, they should be fined proverbial goats for disturbing the social peace. By default, they should be expelled from the “village” and handed over to the ICC for prosecution for crimes against humanity. And just as the Economic Community of West African States (ECOWAS) did to Mali when Gen. Amadou Sanogo seized power in March 2012, the African Union should close all borders with South Sudan and impose an economic blockade. When elephants have trampled the grass, they should not be rewarded with additional stomping grounds.

In mediation and negotiation, sequencing, prioritizing issues and setting the agenda is a pre-condition for confidence-building measures. This excellent argument below explores the reasons for it, with a case in point on Syria

Could discussing humanitarian issues lead to disaster at the Geneva II talks?

Following weeks of bitter infighting and several postponements, a deeply splintered Syrian coalition voted in Istanbul on Saturday to attend the Geneva II talks that are scheduled to begin in Montreux under U.N. auspices on Jan. 22. In a separate meeting the same day in Ankara, the coalition vote was endorsed by key groups within the armed opposition, including the Free Syrian Army and all but one faction of the Islamic Front. The vote removed the last remaining obstacle to convening the talks. It did little, however, to raise expectations about what they will achieve.

Despite the dim hope that a political solution can be found in this round of talks, perhaps the most disastrous turn would be for negotiators to be deviate from the mission of the talks: transitioning Syrian President Bashar al-Assad out of power.

The negotiations are intended to focus on the implementation of a transition process approved by the U.N. Security Council in July 2012 — the Geneva I protocol negotiated between the U.S. and Russia by then special envoy Kofi Annan. Yet differences between parties are so vast that the talks are almost certain to end in failure. The U.S. and Russia remain deeply divided in their interpretations of Geneva I. The government of Bashar al-Assad has repeatedly set out positions contrary to the Geneva I framework. Last week, in a letter from Assad’s Foreign Minister Walid al-Muallem to U.N. Secretary General Ban Ki Moon, the regime said it disagreed with “certain elements” of the proposed agenda, and expressed its intent to use the Geneva meeting to focus on “counterterrorism.”

Muallem’s letter led to quick riposte from the U.S. Speaking from the State Department’s briefing room in Washington, Secretary of State John Kerry bluntly rejected “recent revisionism as to why the international community will be gathering in Montreux.” Directing his comments at the Assad regime’s attempt to “muddy the waters,” Kerry affirmed that the “purpose, the sole purpose” of the Geneva II talks is “the implementation of Geneva I.” Specifically, he said, the goal was to build toward a “governing body with full executive powers established by mutual consent” that could smooth Assad’s transition out of power.

Kerry’s statement is an important reminder of where parties to the talks need to focus their efforts throughout Geneva II, for however long the process continues. Staying on track will not be easy, and not only because the opposition is fragmented and the Assad regime determined to do everything it can to undermine the Geneva I framework — conditions on the ground pose the most significant obstacle to success. The regime’s position has been strengthened by recent, if limited, military gains, while the opposition is insecure and divided — neither side has incentives to compromise. In the absence of a mutually hurting stalemate, the basic conditions required for negotiations to succeed are not yet present.

Anticipating the likelihood of failure, the run-up to Geneva II has been accompanied by a wave of well-intentioned but misguided recommendations to broaden the agenda. On Saturday, the Washington Post‘s lead editorial questioned: “Why insist that this long-shot objective is Geneva 2’s exclusive goal?” The Post advised Kerry to concentrate instead on “palliative measures” to salvage something from the talks, including a cease-fire in Aleppo and the opening of humanitarian corridors. Similar recommendations to prevent Geneva II from becoming a “hopeless exercise” have been put forward by leading analysts of the Middle East in both the U.S. and Europe, and by high-profile former U.S. diplomats.

The impulse to prevent failure and keep a Geneva process alive is understandable. Geneva remains the only diplomatic framework that is supported by both the U.S. and Russia. Yet the most effective way to achieve this goal is to ensure that all diplomatic energy and resources are directed toward achieving the meaningful political transition that Kerry claimed as the “sole purpose” of the Geneva II talks. Second-order objectives are appealing when first-order goals appear out of reach, but the impulse to move too quickly to shift the focus of Geneva II carries its own considerable costs, and should be avoided for a number of reasons.

First, broadening the agenda will shift attention from the hard work of addressing the conflict’s causes to palliative agreements aimed at mitigating its effects. Responding to the consequences of conflict is essential, of course. The imperative of securing ceasefires to reduce the terror and destruction of indiscriminate regime attacks, together with the urgency, intensity, and sheer scale of Syria’s humanitarian catastrophe, certainly demand more attention. But Geneva II is the only framework yet established that will bring all relevant actors together to begin the long, difficult work of actually ending the conflict. The reality that this first meeting will not produce an agreement is not sufficient reason to shift focus in advance — doing so will establish a precedent that will be difficult to overcome in the future.

Second, exploiting the presence of key actors in Montreux to make headway on humanitarian issues poses significant risks for the coalition and its leadership — it could find itself even further discredited if it agrees to be diverted from its core purpose in participating in the Geneva II talks. Divisions about whether to attend Geneva have already deepened fractures within a notoriously fractious opposition. Among armed groups and Syrians living in opposition-held areas, support for Geneva is volatile and highly contingent on perceptions of how well the coalition delegation performs. Its ability to keep talks focused on a political transition, and its willingness to walk away if the regime makes this impossible, will be critical in shaping public perceptions about the value of the Geneva process more broadly. Securing agreements on other issues may save face for the U.S. and other international actors, but its effect on the Syrian opposition would be decidedly damaging.

Third, a focus on palliative measures plays directly into the hands of the Assad regime, underscoring the weakness of the opposition and its international supporters. The regime has shown itself to be quite adept in using international agreements to bolster its legitimacy, consolidate its authority, avoid accountability, and reassert its intent to remain in power. Using the Geneva talks to reach further such agreements without progress on core political issues will only give the regime further ammunition with which to advance these aims, to the detriment of the opposition. In contrast, insisting that the only agenda for Geneva II is implementation of Geneva I and the beginning of a political transition will force the regime to contend with the issue it least wants to address: an outcome in which Bashar al-Assad will have no role to play. It will also signal to Russia that it will not be able to exploit the Geneva II framework to shore up the Assad regime.

To shift the focus of Geneva talks away from core political issues would be a significant mistake. It would continue a process of re-legitimating the Assad regime, further delay accountability to its tens of thousands of victims, and render even less likely the prospects for a political transition in the future. To broaden the agenda will be a vindication of the Assad regime’s strategy of diverting attention from Geneva I. It would send a clear signal that the Geneva I framework — already on life support — will be all but dead and buried. If the U.S. and other international actors wish to prepare for failure in Montreux, their best bet is not to change the subject, but to figure out how to change conditions on the ground and create the conditions for the next round of negotiations to succeed.

Mediation is a tool, mechanism, or a system for conflict resolution. People can either go to court, go to war or find alternative ways to constructively end their disputes. Mediation works best in situations where there is a power disparity, parties want to maintain the relationship, reduce conflict costs, or where there is a high number of deaths on a battle field. As an earlier post has already defined mediation, let us focus on here on the when to mediate, under which circumstances and principles to mediate, and whether mediation is the right mechanism to address grievances between parties or not.

1. To mediate or not to mediate – that is the question
Mediation differs greatly from any other alternative dispute resolution method. It does not judge, arbiter, offer unilateral solutions, impose sanctions, criticize, expose, evaluate, decide, seek, speed up, fight, negotiate, resolve, nor does it manipulate, instigate, neutralize or exhonerate parties. Since we have learned that there are many definitions to mediation, I would like to emphasize that it helps the parties of finding an amicable and workable solution through the help of an accepted intermediary and it needs to be solution the parties can live with. It is very important to retain this popular definition of mediation because it is the parties who engage in mediation, not the mediator. It is their speed, level of comfort, and information base that allows for dangerous decision making processes. Mediation works alongside many different methods of intervention. In the African Union Handbook on Mediation, which I wrote while being part of a project led by a South African NGO, I shared 16 different ways of intervention, mediation being one of them. Mediation takes into account antecedent and current conditions and works towards outcomes that contribute to a larger peace process.
A peace process is the sum of all conflict resolution activities that lead to the transformation of a specific conflict. This means that, at times, a peace process is the result of a range of mediated agreements. Sometimes, it takes just a comprehensive peace agreement to be mediated to end the violence. And, cessation of hostilities, containing the violence, and moving towards constructive resolution of the conflict is when we mediate. Securing the right for individual to live, survive, be heard, and to alleviate any suffering is the right time to mediate. And we mediate at the earliest possible point, when security conditions are favorable, the parties have invited the mediator, and if the mediation is running according to the Do No Harm principles. If there are personal risks, risks to the parties, to the government, to the rebel groups, to the refugees, then there should be NO mediation, but rather another tool for intervention, such as good offices, disaster management, crisis management, sanctions, embargoes, etc. This may ripen the situation for any peace process to happen, but more importantly, the parties’ attitudes and acceptance of the mediation and the mediator are key for the initial brick to be laid. This, in return, means that mediation is not concerned with conflict resolution per se on the onset, although it can be used at a different level and with varying degrees of interaction and coordination to address and transform the root causes of a conflict.

2. Complementarity and convergence
Especially in political mediation settings, the added value of coordination, complementarity and convergence of competences and capacities does pose a great deal as to the success of a mediated process. Albeit still missing actually validated data linking process to outcomes, it can be said that the more convergence is taking place between various actors and different peacemaking structures, the more useful an intervention can become to stop the violence and to create the negotiation space required for warring factions and traumatized people to get together and to even think of forgiveness and reconciliation. A single actor or entity is not able to quell the violence in a conflict or to even deter a recourse to violence. It takes a range of stakeholders and actors, at various levels, from the international to the national level, from the country to the local level, and from the local level to the tribal and individual level to address and tackle conflict and post-conflict settings. Issues of inclusion, equity and equality have to be positively addressed in order for a meaningful conflict transformation process to take place. This includes the inclusion of women, minorities, the marginalized and the most vulnerable in a post-conflict society.

Mediation takes place across a range of styles and it is inherently connected to the person who is mediating. As much as the various styles are being used to explain or expose a certain way on how to mediate issues, people, and disputes, the personality, individualism, idealism, and ethics of the mediator play an equal part in success or failure of a mediated process. A third dimension, apart from the styles and personality, is the contextual dimension of the mediated process. Some may feel that mediation principles adhere to all the contexts, be it labour disputes, a peace dialogue, or a cease-fire mediation, and that the only distinction is the style of mediation used, whether it is to contain the violence or to engage into resolving the deeper issues and root causes of a conflict. Others say that there is no blue print when it comes to negotiations skills and that it all depends on a sound understanding of the history and the context. And again other voices say that it may be wise if the mediator knows nothing at all when he or she engages with the party in order to really remain neutral and impartial at all times and throughout the process.

1. Principles of negotiation
When it comes to principles of negotiation, we are all reminded of the teachings and learnings derived out of the Camp David process, the principle of consensual negotiations as taught by eminent scholars at the Program on Negotiation at Harvard. And, in many cases, these principles do apply to a range of settings, contexts, and situations. However, it must be pointed out that mediation differs a lot from negotiation in every aspect of the word. Some schools and training centers do apply the same rationale when it comes to seeking interests instead of positions and focusing on the problem rather than the people. The underlying assumption is that there is an equality of power in terms access to information, equity in representation at the negotiation, and a common set of cultural values, ranging from language to basic human needs. Albeit striving for this theoretical approach is a valid point, mediation needs to take different dimensions and categories into account. In most cases I have been involved in, the first principle to focus on problems rather than people is a problem in itself. Often times, people are the problem. Hence – while the technique of negotiation is a very important skill, it needs to be sequenced differently and in a different settings when we talk about mediated process as mediation focuses on not only voluntarism of working towards a common solution, but most importantly in a change of attitudes. While negotiations focus on a predefined set of activities, e.g. disarmament, power-sharing, etc., mediation focuses on a process. A principle of mediation is therefore that the process of mediation focuses on both, the people and the problems and it is up to the knowledge (less so the skills) of the mediator to get this aligned, building trust and dialogue and a constructive atmosphere, in order for equal negotiations to take place.

2. The moment of ripeness
The teachings of learned scholars tell us that it is important for a conflict to be ripe to be amenable to solutions. This can take place either because the people are tired of war, or the warring parties are running out of military options, etc. This canon has been repeatedly taught in schools, universities and is the foundation for any conflict intervention. It has been complemented by the notion of readiness, where parties, and possibly interveners, need to be “ready” in order to engage in conflict transformation.
From personal experience, I would argue that while these are valid points and tenets, early response and early entry is crucial as it is linked to the right of the individual to be alive and mediation is there to cease, halt or delay the violence. Often times, people refer to success or failure of mediation. The question remains to what extent this can be of importance and to whom? Is it of importance to the mediator, so that he can have another mediated process under his belt or is it of importance to the agency that is sending the mediator? Or isn’t it rather a question of who will benefit from the mediation? Since there are many mediation contexts, I would limit my suggestions onto cease-fire and political mediation, and thus there can be no doubt that in line with the tenets of human rights for the right to live, that a thoughtful and timely early intervention is better than having the population bled out before intervening. It is assumed that not everyone nor every outfit is destined to do such an intervention, yet there are a number of agencies, intermediaries, individuals and insider mediators who, if and when properly equipped can enter the conflict realm and provide throughout mediation services, that can then complement other mediation activities.
More interesting and of importance to the mediator are the intrinsic conflict dynamics and the perception that exist between the parties that guide a mediator’s decision to intervene or not.

3. More knowledge, less doing
Although skills are important, the emphasis is more on knowing than doing. Communication skills and even administrative skills, especially documenting, recording, storing, sharing and reporting, are vital components and corner points of any mediation endeavor. Yet, if there is a toolbox the mediator can use to gain trust and credibility to get his or her job done, then it happens less so by him or her doing something, but rather with him or her knowing about the conflict, knowing about the cultural sensitives, knowing on how to communicate the things that can be said and to explore the things that are left unsaid, knowing on how to use the power to create alliances in order to support mediated processes, and knowing about languages. This, of course, may change, depending on the context and the setting of the mediated process. For instance, if a process requires security arrangements to be agreed upon, then the skills and the knowledge of a technical experts with facilitation skills would be quite useful to use. Furthermore, different conflict environments or topics may necessitate a different range of styles, actors, and complimentarity of efforts and actions in order to succeed. A key competence, which cannot be taught in schools, trainings, or other laboratory experiments, is timing. Knowing not only about the relevance of time in a specific cultural setting, but also knowing when to do what and what time and for what purposes,is a key competence, and, if I may use the term deliberately, a critical skill for any mediator. Again, this may be different for other dispute resolution mechanisms, but it holds definitely true for any mediation effort. Kofi Annans’ intervention in Syria is a case in point. Timing should not be confused with ripeness, since ripeness discusses the issue of intervention or not, while timing suggests that a process is already underway and that the mediator needs to work on changing attitudes, behaviors and motivations of all involved parties at the negotiation table. Knowledge is the essence of any mediation process.

4. Final thoughts
I would like to conclude by emphasizing on the issue of knowledge. Universities, training institutions, and international organisations need to review the way future generations of mediators will be trained, taught, and peer shadowed in order to be effective, not successful or failed, mediators.

When exploring the Congo, one does stumble open women fighters, fighting for the same cause along their male rebel fighters, albeit the reasons for the fights may at times be questionable. Telling the story through her camera, the italian photographer is able to provide story, context, and structure to the phenomenon of women fighters in the Congo.

Conflict zones are not just zones of despair, crises, and suffering. There are many shades of grey. And, in order to look beyond the pain and brainstorm creative ideas, it pays off to look at all sides of a story. This article provided by CNN may not be the most sophisticated and in-depth piece of journalism, but we can be thankful to the author to have made the effort of exploring a different side of the story of the D.R. Congo. Enjoy – all copyrights by CNN.

Below is a good summary from USA Today about the situation in the Easter part of the DRC with linkages to the Kampala Talks being held in Uganda between the Government of the DRC and the M23 rebels, with Uganda as Chair of the International Conference of the Great Lakes Region (ICGLR) and mediating the dialogue.

Mediation is part of a wider field of alternative dispute resolution systems. All dispute resolution systems respond to a specific conflict style or dispute that needs to be resolved. Among many other variations, let’s focus on a the most important alternative dispute resolution systems in the field and let’s explore their strengths and limitations. Furthermore, the attempt will be to present the following in a cross-cultural context and within other frameworks.

1. Mediation vs Arbitration

Mediation is oftentimes confused with arbitration. The difference is that in arbitration the neutral arbitrator is empowered to render a decision for the parties. The power and authority to make the decision is in the hands of the arbitrator. In mediation, the neutral (depending on context and content as we will elaborate later) mediator has no power to render a decision; the power to make decisions is in the hands of the parties and it remains there until they reach a final agreement.

An arbitrator is comparable to the role of a judge – however without the structural enforcement by a judicial and governmental procedure. An arbitrator’s decision is binding, final and enforceable through the collection process. This decision is like a court judgement. Mediation, however, is a voluntary process. The parties can decide at any time to leave the mediation process. A mediator is more of a negotiator. Mediation is closer to negotiation. In the understanding of this framework, mediation is considered to be a negotiation process assisted (others say: facilitated) by the guidance and intervention of the neutral and impartial mediator. While negotiation is usually a one-on-one with the parties themselves, mediation introduces the dynamic of a neutral party dialogue leader.

Hence, arbitration is closer to litigation. In fact, arbitration is considered by some authors in the field of ADR an “adjudication”. The judging is done by an arbitrator instead of a judge or jury. Rules of procedure and evidence may or may not be in effect in arbitration. Arbitration differs from litigation in that there are no open courtrooms, public records, waiting periods, or rights to appeal. Nevertheless, a decision of the disputed case is deferred to a higher authority. Someone else is thus imposing the decision on the parties. In mediation, the parties are working out a solution for themselves with, through and under the assistance of a mediator. Mediation is an assisted problem-solving process. Arbitration and litigation, the parties surrender control of the outcome.

Mediation is most of the times referred to as a means of solving disputes through assisted negotiations or facilitated negotiation. There are mediators who incorporate directive, evaluative or transformative elements – and the literature abounds with debates over these elements as it will be demonstrated at a later stage of this chapter. However, facilitating negotiation is considered a core competence.

Arbitration manifests itself in a variety of forms, however they all involve private adjudication and referral of the case’s decision to a higher, selected authority.

Litigation is a combination of negotiation and litigation. Cases are filed to court, they are punctuated by trips to the courthouse for motion hearings or depositions for pre-trial discovery and then back to the bargaining procedure. Most of the times, a judge will render a decision.

Collaborative Practice means a process of negotiation in which at a minimum degree the parties and their counsel sign a participation agreement where all agree that the lawyers’ involvement in the case will be limited to advice and negotiation, and that if the negotiation fails and the case must go to court, the lawyers will withdraw and the parties will hire new counsel. Additional elements, such as information sharing, respectful communication, confidentiality, client participation in the process, interest-based negotiation, and the joint retention of experts are part of the participation agreement. Collaborative practice usually involves a series of four-way meetings in which both parties and both attorneys participate.

Cooperative Process Agreements are a new development in the ADR field. Unlike collaborative practice, there is no consensus at this point among practitioners regarding the essential elements of this process. However, it can be referred to as a process in which the parties and counsel sign a participation agreement that contains provisions similar to those of a Collaborative Practice agreement except for the withdrawal/disqualification provision (see sample agreement at http://www.bostonlawcollaborative.com/documents/2006-02-cooperative-process-agreement.pdf). Both Collaborative and Cooperative models create a similar container for negotiations and thus, like mediation, seek to create a safe and confidential place for conversations and agreements.

Many other terms and forms of hybridization between the legal field and other dispute resolution systems have occurred. However, the all the research to these models are still lacking the complexity of multi-lateral negotiation. Furthermore, mediation is the only conflict resolution method that creates a truly dialogical container for all the parties to be able to settle a conflict. Hence, this research work will be based on the elements of mediation in order to assess settlement procedures and decision-making processes in group-related conflicts.

Negotiation systems create a structure to encourage and facilitate direct negotiation between parties, groups or states without the actual intervention of a third party. Mediation and conciliation systems are very similar in that they intervene through a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Arbitration systems authorize a third party to decide how a dispute should be resolved. It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation and conciliation are non-binding and depend on the willingness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow, even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject. Furthermore, the distinction also goes to differ between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate or arbitrate prior to court action. ADR processes may also be required as past of a prior contractual agreement between the parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties. These forms of ADR, and a variety of hybrids (see …. ) are described in the Taxonomy and the Glossary.

Although ADR is an important means in many conflict resolution activities, it might be ineffective in certain contexts, such as international crisis intervention and conflicts over resources. In particular, ADR is not an effective means to:

– Resolve disputes between parties who possess greatly different levels of power or authority;

– Resolve cases that require public sanctions;

– Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.

Especially for the contextual focus of this research work, ADR is inappropriate to resolve multi-party cases in which some of the parties or stakeholders do not participate or have nothing to say (such as minorities, womens, nomadic tribes, etc.).

Another ADR system oftentimes used on the socio-political and international level is Consensus-based negotiation. Consensus decision-making requires that everyone agrees to a decision, and not just a

majority, as occurs in majority-rule processes. In consensus-based processes, people work together to develop an agreement that is good enough (but not necessarily perfect) for everyone at the table to be willing to accept (Conflict Research Consortium, 1998).

We will come back to other forms of ADR systems brought forth by the legal field of conflict resolution, but let’s go back to what mediation is certainly not.

2. Mediation is not …

Mediation is not an attempt to attribute or allocate a faultive behavior. Assessment of fault may or may not be done by judges (or arbitrators), but it will not be done by mediators or it will not be found in a final agreement co-drafted by a mediator. Mediation is not a means to declare winner or loser. Mediation does not produce a one-sided victory or constant separation. It produces dialogue and permanent cease-fire.

Mediation is not designed to establish another picture of truth – whatever that might be. Fact-finding is a procedure within the litigation process in court or in arbitration. Mediation takes a look at the present, while invoking the past and preparing the future.

Mediation is not a process to find out what a mediator thinks or not. The mediator’s role is to guide the conflicting parties towards a truce. If a truce is not achieved and mediation is halted, sometimes the mediation may be asked to give an opinion on what could or should be done. Although this is rare in certain instances, other contexts or settings might require a mediator to render an opinion thus testing the critical incidents for a potential agreement. In international mediation, the mediator is usually more partial and active than in traditional, domestic-based mediation.

Although a mediation team might be established to run a multi-party negotiation process and hence be constituted out of experts and advisors, there are usually no witnesses or experts in mediation. This is in respect to one principle of mediation, where the parties are participating on a voluntary and self-determined basis.

Another principle relates to the fact that no recording is made of the proceedings. Mediation is confidential and private. What happens in the mediation room stays in the mediation room. Mediation is not to review or appeal. Either it produces a settlement or it does not. There are current cases in civil law investigating into a mediator’s refusal to appear as a witness. We will get back to those legal cases at a later stage.

In most instances, mediation is referred to as a means of settling a dispute outside of the court system. Yet, the question still remains: What can be done better through the use of mediation than continuing the dispute?

Discussion, negotiation, conciliation, arbitration, moderation, ombudsperson, …. and much more conflict resolution terms have in common that they are attempts to respond and to solve to a specific conflict. At the same time, they have differences in structure, approach, intervention and interaction. Mediation has been internationally and inter-academically recognized as the most sustainable conflict resolution process. Albeit many different approaches and understandings of mediation, it can be described as a process in which conflicting parties communicate under guidance and assistance of a neutral mediator in an attempt to bring their dispute to an end. The mediator is not empowered to render a decision, but merely to guide the parties to their own voluntary settlement. If settlement and/or agreement is reached, it then becomes binding through the production of a legal document.

As such, some practitioners and scholars argue, that mediation doesn’t respond to any rules, which leaves the process creative, flexible and very much opened and adaptable to the needs of its users. However, it is hereby suggested, that mediation has a structure, a process that in itself responds to a certain logic, but never imposed upon the parties in order for them to be the decision-makers of their own settlement.

What is the difference between mediation and other forms of conflict resolution, such as arbitration and what is its status compared to litigation?